Mahendra Kumar vs State of M.P. and Others

N.K, Mody, J.

This order shall also govern the disposal of W.P. No. 446/2002 as the original land holder in both the petitions is Smt. Mehtab Bai.

Short facts of the case are that Smt. Mehtab Bai was the Bhoomiswami of the land bearing Survey No. 132 measuring 0.356 hectares of land situated at village Pipliya Kumar of Tahsil and District Indore. The measurement of land which is involved in W.P. No. 446/02 is Survey Nos. 138 measuring 1.234 hect., 139 ad measuring 1.019 hect. and 140 ad measuring 1.189 hectares.

The present Petitioner has moved an application before Tahsildar for mutation of his name for the land bearing S. No. 132 ad measuring 0.356 hectares. The application was allowed vide order dated 27.1.1984 and the name of the Petitioner was mutated in the revenue record. Smt. Mehtab Bai in her lifetime submitted the return. Prior to it, Smt. Mehtab Bai submitted as statement u/s 6 of the Urband Land (Ceiling and Regulation) Act, 1976 (which shall be referred herein as ''Act''). Thereafter, on 27.5.1983, notification was published by the competent authority u/s 10(1) of the Act. On 3.1.1985, Mehtab bai died. Prior to it from 11.10.1983 to 28.12.1995, there was no progress in the ceiling case. Vide order dated 25.8.1998, the competent authority passed an order to serve Smt. Mehtab Bai. It was also ordered that if Smt. Mehtab Bai is not available or does not take notice then the same be served by affixture. It is submitted that in compliance of the order dated 25.08.1998, notice was issued on 28.8.1998 and on 25.9.1998, notice was served by affixture. On 21.5.1999, possession was taken by Panchnama (Annx. P/2). Thereafter, on 3.8.2000, revenue authorities passed the order to correct the revenue record by deleting the name of the Petitioner and substituting the name of the State Government.

On 13.01.2006, the present petition was filed wherein the prayer was made to quash Annx. P/1 to P/3 which are proceedings of the ceiling case and Panchnama.

In W.P. No. 446/2002, Mr. V.K. Jain, learned Counsel for Petitioner is appearing on behalf of the Petitioner. In this case, it is alleged that after submission of return u/s 6 of the Act, Smt. Mehtab Bai filed application u/s 20 of the Act for exemption. During pendency of the proceedings, the Petitioner entered into an agreement with Smt. Mehtab Bai vide agreement dated 31.9.1983. It is further alleged that a part of the land bearing Survey Nos. 138 and 139 were acquired by the Indore Development authority (for short ''IDA'') for Scheme No. 94 It is alleged that IDA has declared a scheme known as Scheme No. 114 (Part - II) and in the said scheme, land comprising Survey Nos. 138,139 and 140 are included. It is alleged that since the Petitioner agreed to purchase the land, therefore, Petitioner approached the IDA for extending the benefits under resolution No. 9. It is also alleged that tri-parte agreement between the owner, Smt. Mehtab Bai and Prahlad Choudhary was executed on 22.2.1990 wherein it was also agreed that Petitioner shall not object the acquisition of the land by IDA and IDA shall provide the plots to the members of the Petitioner. It is further alleged that notification was issued by the State Government on 06.10.1989 u/s 4 and on 09.10.1990 u/s 6 of the Land Acquisition Act and the Land Acquisition Officer vide award dated 27.11.1992 determined the compensation as Rs. 2,49,118/-.

Further case of the Petitioner is that the State Government paid the compensation to the Petitioner and after taking the possession from the Petitioner, the State Government delivered the possession to the IDA on 11.9.1990 vide Annx. P/5. It is submitted that as per tri-parte agreement, after obtaining the compensation from the Land Acquisition Officer, Petitioner was required to deposit the same with the IDA. Accordingly, the Petitioner deposited the said amount with the IDA. It is further alleged that as per the agreement, the Petitioner was also required to deposit development charges with the IDA. Accordingly, the Petitioner deposited a sum of Rs. 7,50,000/-. with IDA in addition to a sum of Rs. 2,49,118/-, which was the amount of compensation as per the award. It is also alleged that IDA has started the development work and has almost completed the same.

Further case of the Petitioner is that after the death of Smt. Mehtab Bai on 3.1.1985, the name of Prahlad Choudhary was mutated being the sole successor. It is alleged that Prahlad Choudhary also submitted the return u/s 6 of the Act. Prahlad Choudhary also filed an application u/s 20 of the Act for exemption. It is alleged that objections were also filed by the Prahlad Choudhary u/s 10(1) of the Act. It is submitted that application was filed by Smt. Mehtab Bai and thereafter, by Prahlad Choudhary u/s 20 of the Act which was never decided. Further case of the Petitioner is that paper possession was taken on 21.5.1999 against which the Petitioner filed a revision petition before the Respondent No. 1 which was dismissed vide order dated 1.5.2000 against which the Petitioner was filed which was numbered as W.P. 2058/2000 and was disposed of vide order dated 27.3.2001 (Annx. P/22) whereby the order passed by the State Government was set aside with a direction to decide the matter afresh. Thereafter, vide order dated 30.12.2001, again the order was passed against which the present petition has been filed.

Mr. B.L. Pavecha, learned Sr. counsel for Petitioner submits that undisputedly, Smt. Mehtab Bai was the holder of the land and vide order dated 27.01.1984, the name of the Petitioner was mutated in the revenue record. It is submitted that for a long period from 11.10.1983 to 28.12.1995, no action was taken by the competent authority in the above case. It is submitted that Urban Land (Ceiling and Regulation) Repeal Act, 1999 was introduced in the Parliament on 04.6.1999. Since, thereafter the Parliament was not in Session, therefore, Ordinance No. 9 of 1999 (Urban and (Ceiling and Regulation) Repeal Ordinance (5 of 1999) came in force w.e.f. 11.1.1999, and thereafter, the Central Act came in force with effect from 22.3.1999 which came in force in the State of Madhya Pradesh on 17.2.2000. It is submitted that it is only after the introduction of the Bill, the State Machinery became active and initiate the proceedings for taking the possession. It is submitted that notice is alleged to have been served on Smt. Mehtab Bai on 25.9.1998 and in the service report itself it is mentioned that Sarpanch of the Village informed that Mehtab Bai had died. It is submitted that after knowing it well, no notice could be served on Mehtab Bai, the notice was served by affixture. It is also submitted that the competent authority also treated the service valid on a dead person, proceeded u/s 10(5) of the Act and alleged paper possession was taken on 21.5.1999. It is also submitted that since the name of the Petitioner was situated in the revenue record vide order dated 27.1.1984, therefore, notice ought to have been served on the Petitioner but no notice was served on the Petitioner. In view of this, it is submitted that petition deserves to be allowed and the proceedings relating to paper possession deserves to be quashed.

In W.P. No. 446/2002, Mr. V.K. Jain submits that land was acquired by the State Government and the compensation was paid to the Petitioner in compliance with the award dated 27.11.1992 and after payment of compensation to the Petitioner, the possession was given by the State Government to the IDA. It is submitted that in the circumstances, there was no occasion for the Respondents to retake the possession of the land from the Petitioner vide Panchnama dated 25.1.1999. It is also submitted that as per the record, return was filed by Prahlad Choudhary who was Legal Representative of Smt. Methab Bai and no notice was given to Prahlad.

In both the case, reply has been filed by the State Government wherein it is stated that return was filed by Smt. Mehtab Bai wherein the column No. 5 relating to description about other owners/particulars of the members of family, the name of only Smt. Mehtab Bai was shown. It is submitted that as per the record, on the available address, the notice was issued by the competent authority u/s 10(5) of the Act but at the time of service of the notice, it was informed that no Mehtab Bai is residing at Gram Pipliya Kumar. At that time, the notices were returned unserved. Thereafter, notice was sent on the address mentioned in the Vivarani. Under these circumstances, the notice was affixed on 25.9.1998 on Panchayat Suchna Patal. It is also submitted that possession was taken on 21.5.1999 while the present petition has been filed on 31.1.2006, therefore, the petition deserves with the defect of delay and laches.

So far as W.P. No. 446/2002 is concerned, it is also submitted that IDA is the necessary party and without impleading the necessary party, the petition suffers from the defect of non-joinder of necessary party. Learned Counsel submits that Order Annx. P/24 dated 30.12.2001 was passed by the State Government in compliance with the order passed by this Court in W.P. No. 2058/2000 (Annx. P/22), therefore, scope of this petition is limited. It is also submitted that since the Petitioner society is claiming rights through Prahlad Choudhary, the son of deceased Smt. Mehtab Bai, therefore, Petitioner society has no locus standi in the present petition. In alternative, it is submitted that since the possession has already been taken on 21.5.1999, which is in dispute in the present case, therefore, the matter deserves to be remanded for determining the question of possession. For this contention, reliance was placed on a decision of this Court in the matter of Smt. Sunderbai and Others Vs. State of M.P. and Another, , wherein this Court while dealing with the provisions of Urban Land (Ceiling and Regulation) Repeal Act, 1999 observed that where the land has been vested in the State Government under Sub-Section 3 of Section 10, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority, nothing remains to be done. It was further observed that if the possession is not taken over, the same cannot be taken over by the State Govt. In the above case, keeping in view the factual scenario, this Court directed that the Competent Authority shall afford an opportunity of hearing to the Petitioner to put-forth the grievances that how the possession has not been taken over as per law.

Mr. B.L. Pavecha, learned Sr. counsel has placed reliance on a decision of the Apex Court in the matter of Smt. Angoori Devi v. State of U.P. and others, AIR 2001 SCW 5128, wherein the Apex Court has observed that possession of vacant land not taken over by State till repealing Act came into force, proceedings would stand abated by virtue of Section 4.

Further reliance was placed on a decision in the matter of Sudhir Agrawal v. State of M.P. and others, 2004 (1) MPJR (SN) 42 = 2004 (3) MPHT 16 (NOC), wherein it is held that possession of the surplus land has to be taken in accordance with the statutory provisions of law. Under the statutory provisions, a specific procedure is provided for the purpose of taking over possession. u/s 10(1) a draft statement has to be notified, such notification has to be published in the official gazette in the manner prescribed. Thereafter action has to be taken for taking over possession after issuing notice u/s 10(3), 10(5) and possession has to be taken over u/s 10(6). It was further observed that in that case possession was not taken over in accordance with the provisions of law. On the contrary, there is nothing on record to indicated that possession has been taken over from the Petitioner of that case after final orders have been passed by the Competent Authority. In the circumstances, it was held that in view of provision of Section 4 of Repeal Act, 1999, the entire proceedings abate and State cannot dispossess Petitioners.

Learned Counsel further submits that from perusal of Panchnama, except 4 Officers of the State Government, there was no independent person in whose present the possession was taken. It is submitted that in Gaurav Agroplast Ltd. v. State of M.P. 2005 (1) MPACJ 356, this Court has observed that so far as delivery of possession is concerned, firstly it is noted that Section 10(5) clearly mandates that clear notices of 30 days for delivery of ''possession should be given to the persons who may be in possession of the land declared excess. It is only when such a person (in possession of such land) refuses or fails to comply with the order under Sub-section(5) then the competent authority under Sub-section(6), take possession or cause it given to the State Government.

Further reliance was placed on a decision in the matter of M/s Raiko Pvt. Ltd. v. Competent Authority and others, 2003 AIHC 657 wherein High Court of Delhi observed that - "handing over and taking over of possession requires one party to hand over possession and the other to take over possession. It was also observed that department merely by exchanging documents between themselves cannot handover and take over possession. Site plan on record not showing that possession of land of Petitioner was taken over in presence of representatives of Petitioner, it cannot be said that there was handing over and taking over of possession.

So far as delay and laches are concerned, learned Counsel submits that Petitioner came to know for the first time on 21.10.2005 when the Petitioner applied for the certified copy of the revenue record. Apart from this, it is submitted that so far as delay and laches are concerned, in the matter of West Bengal Govt. Employees (Food and Supplies) Co-operative Housing Society Ltd. and Others and The State of West Bengal and Others Vs. Smt. Sulekha Pal (Dey) and Others, , the Hon''ble Apex Court has taken into consideration the same point wherein alleged possession was taken over on 16.09.1971 and action was challenged on 20/09/1991 and it was held that objection based on laches and delay is of no merit. It was held that since the Petitioner had not lawfully and factually dispossed the Petitioner of their khas possession of the lands in question, the right to vindicate and protect their interest in the lands in question in terms of the enabling provisions of the Act would enure till they are dispossessed in the manner envisaged and by observing the formalities contemplated under the statutory provisions.

In both the cases, the alleged possession has been taken over by the Panchnama on 21.05.1999. From perusal of Panchnama, it is evident that there is no independent witnesses in whose present the possession was taken. In the Panchnama itself it is mentioned that work of development is going on which is being carried out by IDA which strengthens the allegation of the Petitioner of W.P. No. 446/2002 wherein it is alleged that land was acquired by the State Government, compensation was paid to the Petitioners and possession was handed over to the IDA on 11.09.1990. Apart from this, before taking the alleged possession, notice has been given to a dead person who had died on 03.01.1985 which is evident from the death certificate (Annex. P/8) much before the actual date of alleged service by affixture.

So far as non impleading IDA as party to the Petitioner is concerned, Petitioner has not claimed any relief against the IDA. Apart from this, the validity of alleged action of Respondent-State Government can be determined in absence of IDA. Therefore, IDA is neither necessary nor proper party. Thus, the Petitioner does not suffer with the defect of nonjoinder of necessary party.

So far as the locus standi of Petitioner in W.P. No. 446/2002 is concerned, Petitioner is claiming its possession on the basis of agreement to Sale dated 31.09.1983 and also tri-parte agreement dated 22.01.1990. The word ''hold'' has been defined u/s 2(L) of the Act, according to which "to hold" means to own such land or to possess such land as owner or as tenant or as mortagee or under the irrevocable power of attorney or under a hire purchase agreement or partly in one of the said capacity. In view of this, it cannot be said that Petitioner of W.P. No. 446/02 has no locus standi who entered into an agreement dated 31.09.1983 and thereafter tri-parte agreement dated 22.02.1990.

In view of this, it cannot be said that possession has been taken in accordance with law. Since the Petitioner is having no knowledge about the alleged paper possession and the Petitioner carne to know when he applied for the certified copy for some other purpose, therefore, it cannot be said that there was delay or laches on the part of the Petitioner.

Since the possession has not been taken in accordance with law, therefore, it is not a fit case in which the matter deserves to be remanded on the question of possession. In view of this, the petition stands allowed and all the proceedings stand abated.

No order as to costs. C.C. as per rules.